United States v. Wade
United States v. Wade
Opinion of the Court
Jason Wade pled guilty for a second time to possessing child pornography. The district judge imposed a sentence of 132 months' imprisonment, though the mandatory minimum and guidelines recommendation was 120 months. Wade argues that the judge procedurally erred by not addressing Wade's mitigation arguments or explaining the upward variance. In the alternative, he argues that his sentence was substantively unreasonable. Because the judge responded to Wade's mitigation arguments, adequately justified Wade's sentence, and did not abuse his discretion, we affirm.
I. BACKGROUND
FBI agents seized Wade's computer when executing a search warrant, and they discovered over 2000 images of child pornography. Wade pled guilty to one count of possessing child pornography, 18 U.S.C. §§ 2252A(a)(5)(B), 2. Under U.S.S.G. § 2G2.2(b), his base offense was increased 13 levels due to the number and the especially odious content of the images. But Wade's offense level was immaterial because this was his second conviction for the same offense. Wade's total offense level of 28 and criminal history category of II would generally have prescribed a recommended sentence of 87 to 108 months' imprisonment, but because Wade committed a repeat offense, his guidelines recommendation became the statutory minimum term of imprisonment: 120 months.
Judge Gilbert presided over Wade's 2008 sentencing for his first conviction for possessing child pornography and varied downward in the sentence he imposed. The guidelines recommendation for that offense was 120 months' imprisonment, but the judge imposed a sentence of just 36 months' imprisonment and 5 years' supervised release. After Wade completed 3 years of supervised release, Judge Gilbert granted Wade an early termination because he thought Wade "had learned to abide by the law."
Judge Gilbert also presided over Wade's second sentencing, the one on appeal here. At the sentencing hearing, the government recommended a sentence of at least 10 *632years' imprisonment (the mandatory minimum), but suggested that the judge vary upward from that because the images were very disturbing, because this was Wade's second conviction, and because the judge had previously given Wade "a huge break." Wade argued that the mandatory minimum term was appropriate because: (1) his addiction to pornography and his stress caused his recidivism, (2) the guidelines accounted for the reasons the government gave for varying upwards, and (3) he had support from family members, who were now better informed about his addiction.
After hearing these arguments, Judge Gilbert imposed a sentence of 132 months' imprisonment followed by 10 years' supervised release. Before issuing the sentence, the judge observed that this was Wade's second conviction for the same offense. He remarked, "fool me once, shame on you; fool me twice, shame on me," and noted that he had given Wade "two breaks"-varying downward in his first sentence and then terminating his supervised release two years early. The judge then acknowledged that child pornography is an addiction. But, he continued, some people "handle the addiction" so they do not reoffend. Because Wade had not adequately managed his, the judge was concerned Wade would offend again. Finally, the judge observed that "not a single 3553(a) factor" favored Wade, noting that it was sad Wade had not previously relied on his family's support. On the Statement of Reasons form, under the section, "
II. ANALYSIS
On appeal Wade first argues that the district judge procedurally erred when he failed to address Wade's principal mitigation arguments. See United States v. Fogle ,
Wade argues that the district judge did not address his strongest mitigating argument-that the guidelines range already took into account Wade's recidivism and previous sentence. In Wade's view, the mandatory minimum acted as a "de facto upward variance," pushing his guidelines range of 87 to 108 months to 120 months.
We do not "draw a bright line to tell district judges when they have said enough, but 'we try to take careful note of context and the practical realities of a sentencing hearing. District judges need not belabor the obvious.' " Reed ,
Wade next argues that the district judge procedurally erred when he *633failed to provide his reasons for varying upward. See Fogle ,
Here, though, the judge provided a reason for the variance, and a completely acceptable one at that: Wade had misused the opportunity Judge Gilbert had previously given him. The judge did not need to give an "exhaustive" explanation for the sentence he imposed, just one that "allow[ed ] for meaningful appellate review and ... promot[ed ] the perception of fair sentencing." Warner ,
Wade asserts that the factors the district judge emphasized-Wade's recidivism, the disturbing images at issue, and the need for future deterrence-are common to all defendants convicted of possessing child pornography for the second time. Such reasons cannot support a variance, Wade argues, because "[a]n above-guidelines sentence is more likely to be reasonable if it is based on factors sufficiently particularized to the individual circumstances of the case." United States v. Jackson ,
But the reasons the judge gave for varying upward were not just Wade's recidivism and the nature of the images he possessed; rather, it was that Wade had squandered the chance Judge Gilbert gave him by reoffending. When Judge Gilbert gave his reasons for the sentence at the hearing, he invoked the adage, "fool me once, shame on you; fool me twice, shame on me," and spoke about the "two breaks" he had previously given Wade. The judge underscored this in his Statement of Reasons form when he wrote, "Leniency provided for previous federal conviction." This reason was "particular" to Wade, and the judge could, in his discretion, vary upward because of it. See Warner ,
Finally, Wade argues that his overall sentence of 132 months' imprisonment is substantively unreasonable, and thus an abuse of discretion. See Peugh v. United States ,
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Reference
- Full Case Name
- United States v. Jason M. WADE
- Cited By
- 16 cases
- Status
- Published